THE LAWS OF THE UNITED ARAB EMIRATES WILL APPLY ON MATTERS RELATED TO THE USE OF THIS WEBSITE
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM OR ADDENDUM THAT REFERENCES THESE TERMS, MERCHANT AGREES TO THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MERCHANT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT THE PARTIES HAVE AGAINST EACH OTHER ARE RESOLVED. INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.
Once the payment is made, the confirmation notice will be sent to the client via email within 24 hours of receipt of payment
Shipping of all foods/goods is done by same day courier using our fleet of food delivery motor cycles and cars. All deliveries are charged.
Delivery Charges or fees are included in your bill prior to finalising your payment and in your receipt upon completing your payment. The delivery charges will depend on your location relative to the restaurant partner you are purchasing from.
These Akwaaba Bites Merchant Terms and Conditions ("Terms") are hereby accepted and agreed to by the company identified within the Akwaaba Bites sign-up process ("Merchant or “You"), and constitute a legally binding agreement by and between Merchant and Akwaaba Bites Delivery Services LLC (“Akwaaba Bites” or “Company” which is a wholly owned subsidiary of Akwaaba Bites Technologies, Ltd. (“Akwaaba Bites ”)). Upon acceptance of these Terms, Merchant may request access to the Marketplace, Non-Delivery, or Merchant Managed Delivery Sales Channels (each a “Sales Channel” as described in more detail herein) and/or product services such as Promotions Tools. Such request shall indicate Merchant’s acceptance of any applicable Sales Channel terms (each a “Sales Channel Addendum”) and/or terms for additional product services (a “Product Addendum”). These Terms may be subject to and/or incorporate the Akwaaba Bites Order Form (“Order Form”), and/or applicable Product or Sales Channel Addenda (these Terms and any such Order Form or any such Addendum collectively, the “Agreement”) or Terms of Use. Merchant’s access to and use of the Akwaaba Bites Services and Akwaaba Bites Tools (as defined below) is subject to the Agreement and may be modified or updated by Akwaaba Bites/Akwaaba Bites from time to time, effective upon posting an updated version of these Terms and/or an applicable Product or Sales Channel Addendum on the Akwaaba Bites website. Merchant is responsible for updating contact information and regularly reviewing the Terms and any applicable Product or Sales Channel Addendum for updates and information from Akwaaba Bites/Akwaaba Bites . Continued use of the Akwaaba Bites Services after any such modifications or updates shall constitute Merchant’s consent to such changes. Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings ascribed to such terms in the applicable Order Form, Product or Sales Channel Addendum.
Akwaaba Bites and its affiliates make available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for Restaurant Items (as defined below) and other products (collectively, “Items”) from Merchant to Customers (as defined below), including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (“Akwaaba Bites Services”).
“Restaurant Items” are defined as foods and beverages that are typically sold by restaurants in a form intended for immediate consumption on-premises, for take-out, and/or delivery. Merchant may be required to sell non-Restaurant Items via a unique electronic storefront (“Additional Items Storefront”). Akwaaba Bites shall retain sole discretion whether an Item constitutes a non-Restaurant Item and whether Merchant is required to sell such Items via an Additional Items Storefront.
If Merchant is eligible to offer the sale and fulfillment of alcoholic beverages through specified Sales Channels in designated Country states (“Alcohol Items”), Merchant’s sale of Alcohol Items via the Akwaaba Bites Services shall be subject to the Terms of Use for Alcohol Sales (“Alcohol Terms”) available here, as well as any Sales Channel Specific Terms.
The definition of Items shall include Alcohol Items as applicable and referenced within the Agreement. If any conflict between these Terms and the Alcohol Terms, the Alcohol Terms shall govern with respect to Alcoholic Items and these Terms shall govern with respect to Items.
In connection with the Akwaaba Bites Services, Akwaaba Bites and its affiliates may also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Akwaaba Bites Services (collectively, the “Akwaaba Bites Tools”), which may include Akwaaba Bites’s and its affiliates’ proprietary technology platform referred to as Restaurant Manager, through which insights and analytics regarding Merchant’s performance and history using the Akwaaba Bites Services are provided, and Akwaaba Bites and its affiliates’ proprietary technology platform referred to as Restaurant Dashboard, through which Merchant may, among other things, receive, accept and fulfill requests for Items from Customers.
Akwaaba Bites and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Items from Merchant and request delivery services for said Items from Delivery People (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (“Akwaaba Bites App”). Delivery People are independent contractors, and as such, they reserve the right to refuse to accept any Item in their sole discretion.
Merchant may request access to sell and deliver Items via various services provided by Akwaaba Bites: Marketplace, Non-Delivery, and Merchant Managed Delivery (each, a “Sales Channel” described in more detail below). By electing to use a Sales Channel, Merchant agrees to accept any relevant Sales Channel Addenda as follows:
i) MARKETPLACE: Merchant may sell Items through the “Marketplace Sales Channel,” whereby Merchant’s Items are presented in the Akwaaba Bites App to Customers who access and request on-demand delivery services provided by Delivery People as defined herein.
ii) NON-DELIVERY: Merchant may sell Items through the “Non-Delivery Sales Channel,” whereby Merchant’s Items are presented on the Akwaaba Bites App to Customers for pick-up at Merchant’s Location (i.e., without the use of a Delivery Person). For the avoidance of doubt, the provisions relating to Delivery People in the Terms will not apply to the sale of Items through this Non-Delivery Sales Channel.
iii) MERCHANT MANAGED DELIVERY: Merchant may sell Items through the “Merchant Managed Delivery Channel,” whereby Merchant’s Items are presented on the Akwaaba Bites App to Customers who access and request on-demand delivery services provided by Merchant Managed Delivery Staff (i.e., employees, contractors, workers or agents of Merchant who provide delivery services on Merchant’s behalf, arranged independently of Akwaaba Bites). Additional Merchant Managed Delivery Sales Channel Addendum terms apply.
i) VIRTUAL STOREFRONT: Akwaaba Bites may provide Merchant with a separate and additional electronic storefront within the Akwaaba Bites App (“Virtual Storefront”) through which Merchant may sell Special Items (as defined in the VS Product Addendum) to Customers. Additional VS Product Addendum terms apply.
Subject to the terms and conditions of this Agreement, Akwaaba Bites and its affiliates will make available the applicable Akwaaba Bites Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a “Location”). Merchant shall provide Akwaaba Bites current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Akwaaba Bites Services to Merchant, Akwaaba Bites and its affiliates, on behalf of Merchant, may respond to complaints by Merchant’s customers (“Customers”) about Items sold by Merchant via the Akwaaba Bites App. In addition, Akwaaba Bites may make available certain Akwaaba Bites Tools to Merchant, and Merchant may access and use those Akwaaba Bites Tools solely in connection with Merchant’s use of the Akwaaba Bites Services. For the avoidance of doubt, as between Merchant and Akwaaba Bites, Akwaaba Bites will retain sole and absolute control over the Akwaaba Bites App (and all elements of the user experience and user interface relating to the Akwaaba Bites App), including with respect to: (i) the personalization of the Akwaaba Bites App for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) the order fees charged to Customers for the delivery services provided by Delivery People; and (v) adding, removing or otherwise modifying any Akwaaba Biteureor functionality made available through the Akwaaba Bites App to optimize reliability or efficiency on the Akwaaba Bites App.
Merchant agrees neither Akwaaba Bites nor its affiliates provide any delivery services. Rather, Akwaaba Bites provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from Merchant and (ii) enable Delivery People to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. Delivery People perform their delivery services for (and are paid by) the Customers, and not Merchant. “Delivery Person” is defined as an independent contractor that intends to seek, receive and fulfill on-demand requests for delivery services using Akwaaba Bites’s proprietary technology under license from Akwaaba Bites or its affiliates.
Merchant will make Items available for purchase through the Akwaaba Bites App (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Merchant will prepare, handle , store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol Items (“Alcohol Safety Standards”). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare or supply Items in accordance with Food or Alcohol Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), Akwaaba Bites may, in its sole discretion, remove such Item from the Akwaaba Bites App. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the Akwaaba Bites App. Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the Akwaaba Bites App is, and at all times will remain, accurate. In addition, Merchant will ensure that the contents of its menu includes each Items Criteria (including any notifications about ingredients, nutritional information, allergen information, alcoholic content (if applicable), etc.) are accurate and comply with all applicable laws and regulations.
Merchant acknowledges and agrees that neither Akwaaba Bites nor the Delivery Person takes title to any Item at any time. Notwithstanding, Merchant shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Merchant’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Merchant’s internal standards. Akwaaba Bites may, in its sole discretion, deduct reimbursement costs from the payment Akwaaba Bites remits to Merchant in accordance with this Section 4. To the extent required by applicable law, and only for the purpose of the expedited provision of Items, Items are sold to Customers under Merchant’s retail and food delivery license privileges.
If Akwaaba Bites supplies a tablet or other mobile device (“Device”) to Merchant to use in connection with the availability of Items via the Akwaaba Bites App, Merchant agrees that: (i) Device(s) may only be used for the purpose of accepting orders via the Akwaaba Bites App, and (ii) Device(s) may not be transferred, loaned, sold or otherwise provided in any manner to any third party. Devices(s) will at all times remain the property of Akwaaba Bites and/or its affiliates, and upon expiration or termination of the Agreement, or the extended absence of all of Merchant’s location(s) from the Akwaaba Bites App for longer than forty-five (45) days, Merchant will return all applicable Device(s) to Akwaaba Bites within ten (10) days. If Merchant receives a wireless data plan for the Device, Akwaaba Bites may require a weekly reimbursement Merchant for the costs associated with the wireless data plan of each applicable Device. Merchant agrees that the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear, may result in a fee (“Damage Fee”). Merchant agrees that Akwaaba Bites may deduct the reimbursement or Damage Fee from the Item Revenue prior to remittance of such Item Revenue to Merchant.
In connection with the access to and use of the Akwaaba Bites Services and Akwaaba Bites Tools, Merchant will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Akwaaba Bites Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Akwaaba Bites Tools or Akwaaba Bites Services (except as otherwise authorized by Akwaaba Bites); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the Country Commerce Department, Country Treasury Department's Office of Foreign Assets Control, or any other government agency. Merchant will not (and will not allow any third party to) use the Akwaaba Bites Services or any other transnational, operational, performance or other data or information that is related to the sale of Items to Customers through the Akwaaba Bites App to directly or indirectly compete with Akwaaba Bites or its affiliates or the Akwaaba Bites Services.
The following restricted Items may not be Akwaaba Bites or sold via the Akwaaba Bites App: people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, items containing endangered species or any items that Merchant does not have permission to offer. Akwaaba Bites may remove from—or otherwise limit your ability to post to—a Merchant’s Akwaaba Bites menu any Items Akwaaba Bites deems prohibited or inappropriate. For clarity, alcohol is only permitted on the Akwaaba Bites App if Merchant has agreed to Akwaaba Bites’s separate Alcohol Order Form for specified States and through specific Sales Channels.
Akwaaba Bites may restrict the sale of Items via the Akwaaba Bites App based on physical attributes of such Items (e.g., weight (per Item or in aggregate), height, shape, or appropriateness for delivery).
For the sale of Items via the Non-Delivery and Merchant Managed Delivery Sales Channels, unless otherwise selected by Merchant, Merchant agrees to allow Customers to provide gratuities through the Akwaaba Bites App. Akwaaba Bites shall remit to Merchant the full value of any gratuities provided by Customers. It is the sole responsibility of the Merchant to comply with all applicable laws (including tax, gratuity, social security and employment laws where applicable) regarding the distribution of any gratuities.
For each Item sold by Merchant via the Akwaaba Bites App, Merchant will pay Akwaaba Bites as follows: the Retail Price (as defined below) of all Items that Merchant sells via the Akwaaba Bites App (excluding any Sales Tax collected on Merchant’s behalf) multiplied by the applicable fee percentage for the Sales Channel used to sell each such Item (“Fee”). The Fee does not include any applicable taxes. Akwaaba Bites will remit to Merchant the total Retail Price collected for all Items Merchant sells via the Akwaaba Bites App (including any Sales Taxes collected on its behalf) less: (a) the applicable retained Fee; and (b) any refunds given to Customers (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Merchant will be remitted within fourteen (14) business days of the sale of the Item. Subject to the foregoing, Akwaaba Bites will typically make such payment on a weekly basis.
Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:
i) MARKETPLACE SALES CHANNEL: Akwaaba Bites will charge Merchant a fee percentage of 30% for each Item sold via the Akwaaba Bites App through the Marketplace Sales Channel;
ii) NON-DELIVERY SALES CHANNEL: Akwaaba Bites will charge Merchant a fee percentage of 15% for each Item sold via the Akwaaba Bites App through the Non-Delivery Sales Channel;
Updated March 16, 2020: Notwithstanding Section 5.1.ii, beginning March 16, 2020 until further notice, Akwaaba Bites will charge a 0% fee percentage for all Items sold via the Akwaaba Bites App via the Non-Delivery Sales Channel. Akwaaba Bites will provide at least seven (7) days notice to Merchant in the event the Non-Delivery Sales Channel fee percentage is increased.
iii) MERCHANT MANAGED DELIVERY SALES CHANNEL: Akwaaba Bites will charge Merchant a fee percentage of 15% for each Item sold via the Akwaaba Bites App through the Merchant Managed Delivery Sales Channel. Further, Akwaaba Bites will charge Merchant a Fee of upto 20% for each Item sold via the Akwaaba Bites App through the Marketplace Sales Channel.
If required by applicable law or regulation, Akwaaba Bites may adjust the Fee. Such adjustment may apply only to certain Items such as Alcohol Items. All Fees under this Agreement will be paid in Country Currency. Akwaaba Bites or its affiliates will deduct the Fee from the payment Akwaaba Bites collects on Merchant’s behalf, as detailed in Section 5.3 below. Akwaaba Bites reserves the right to suspend Merchant’s ability to make Items available for purchase by Customers through the Akwaaba Bites App if Merchant’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if a Delivery Person is unable to complete the delivery of such Item. Except as may be expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement.
Unless otherwise agreed to by the Parties, in consideration of Akwaaba Bites’s work to activate Merchant on the Akwaaba Bites App, Merchant will pay to Akwaaba Bites a Fee of $0.00 ("Activation Fee"). Merchant agrees that Akwaaba Bites may deduct the Activation Fee from Merchant's Item Revenue.
Akwaaba Bites Services connect you with Customers who wish to purchase your Items. You are the “merchant”, “retailer”, or “seller” of all Items to be made available for sale via the Akwaaba Bites App. As such, you are responsible for determining and setting the retail price for each Item (the “Retail Price”), and you are ultimately responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Taxes.
Merchant hereby authorizes Akwaaba Bites to collect applicable Sales Taxes on Merchant's behalf based on information provided by Merchant through the Akwaaba Bites Tools. The Akwaaba Bites Tools’ functionality may be based on interpretations of federal, state, and local laws and regulations and information provided by taxing authorities. Merchant’s use of the Akwaaba Bites Tools, including any communications with Akwaaba Bites, in no way constitutes the provision of legal or tax advice.
Merchant shall promptly notify Akwaaba Bites if it believes any charges (or lack of charges) for Sales Taxes were erroneous or inaccurate. If Sales Taxes charged by Merchant are not in accordance with (or in violation of) any law or regulation, Akwaaba Bites expressly reserves the right to, upon prior notice to Merchant, remove affected Items from Merchant’s menu on the Akwaaba Bites App and/or deactivate Merchant from the Akwaaba Bites App.
Certain legislation commonly known as “marketplace facilitator” laws (“Marketplace Facilitator Laws”) may require Akwaaba Bites to collect and remit Sales Taxes directly to the taxing authority. In jurisdictions with Marketplace Facilitator laws in effect that are applicable to Akwaaba Bites due to this Agreement (each a “Marketplace Facilitator Jurisdiction” beginning the effective date of such legislation), Akwaaba Bites may determine, as of a date specified by Akwaaba Bites (“Switchover Date(s)”), the amount of applicable Sales Tax which Akwaaba Bites will collect and remit to the taxing authority based on Item descriptions and Additional Information provided by Merchant. For the avoidance of doubt, for each Marketplace Facilitator Jurisdiction: (i) Akwaaba Bites will continue to collect Sales Taxes on behalf of, and remit such amounts to, Merchant until the applicable Switchover Date and (ii) beginning on the applicable Switchover Date, any covered Sales Taxes will be collected by Akwaaba Bites and remitted to the applicable tax authority on Akwaaba Bites’s own account, and not on behalf of Merchant. A list of jurisdictions in which Akwaaba Bites will collect and remit Sales Taxes to taxing authorities (and associated Switchover Dates) may be found at https://about.Akwaababites.com Bites Akwaaba Bites.com/en/marketplacefacilitator/, as updated from time to time.
Notwithstanding anything to the contrary in this Section 5, Merchant may not make any Item available to Customers through the Akwaaba Bites App at a price that is higher than the price that Merchant charges in-store for similar Items. Merchant agrees that you will not make an Item available under this Agreement at a price higher than the amount Merchant is charging for similar Items through any comparable platform for food delivery services.
Merchant is solely responsible for providing Akwaaba Bites with, and maintaining, accurate bank account information. Merchant hereby appoints Akwaaba Bites and its affiliates, as the case may be, as Merchant’s limited payment collection agent solely for the purpose of: (i) accepting payment of the Retail Price of Items sold by Merchant via the Akwaaba Bites App plus any applicable Sales Tax collected on Merchant’s behalf, via the payment processing functionality facilitated by the Akwaaba Bites Tools, and (ii) remitting the Retail Price plus Sales Tax collected on Merchant’s behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of Merchant (“Item Revenue”). Further, Merchant agrees that payment collected on its behalf by Akwaaba Bites or its affiliates will be considered the same as payment made directly to Merchant. Merchant agrees that if Merchant does not receive payment from Akwaaba Bites or its affiliates, Merchant’s only recourse will be against Akwaaba Bites and its affiliates. Akwaaba Bites and its affiliates may, from time to time, request information from Merchant to confirm Merchant’s identity as may be necessary under any applicable compliance obligations before remitting any amounts to Merchant and may refuse to process amounts owed to Merchant if there exists a legal or regulatory risk or potential breach of law or regulation associated with such remittance to Merchant. Merchant agrees that Akwaaba Bites and its affiliates may describe or otherwise reflect the terms of this Section, and any related portions of the applicable Addendum or this MFA, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent. If reasonable, Akwaaba Bites may adjust the remittance of Item Revenue collected on Merchant’s behalf for reasons including failure to fulfill an Item as ordered or making a correction on an Item. Merchant may identify any disagreements in connection with such adjustments through the Akwaaba Bites Tools. Akwaaba Bites and its affiliates reserve the right to collect any amounts in connection with such adjustments via a deduction from the remittance of Item Revenue collected on Merchant’s behalf, by debiting the payment method or Merchant’s bank account on record, or otherwise seeking reimbursement from Merchant by any lawful collection methods available. Merchant authorizes Akwaaba Bites and its affiliates to use any or all of the above methods to seek such adjustments and reimbursements. In more serious situations, such as fraud (including any charges for Items that Customers did not place) or Customer complaints, Akwaaba Bites and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives Akwaaba Bites and its affiliates express consent to adjust payments collected on Merchant’s behalf as set forth in this Section.
Akwaaba Bites may, from time to time, require Merchant to provide certain additional information (“Additional Information”) pertaining to particular Items or particular sales of Items for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable laws or regulations. Additional Information may include, but is not limited to: Universal Product Codes (“UPCs”), Global Trade Item Numbers (“GTINs”), Stock Keeping Units (“SKUs”), ingredients, temperature, container, weight, volume, quantities, serving/portion size, nutritional facts, inclusion of utensils, method of preparation (e.g., sliced), identity of preparer, whether the item is “ready-to-Akwaaba Bite”, or intended use. Merchant is solely responsible for providing requested Additional Information to Akwaaba Bites in a timely manner. If Merchant fails to timely provide Additional Information in response to notification and request by Akwaaba Bites, Akwaaba Bites expressly reserves the right to temporarily remove affected Items from Merchant’s menu on the Akwaaba Bites App until such Additional Information is received.
Akwaaba Bites may provide Merchant aggregate information regarding the number of Items picked up by Delivery People and sold by Merchant to Customers pursuant to an Agreement. Akwaaba Bites will also provide reasonable information regarding any refunds given to Customers, including the date of the transaction, the Item ordered, the reason for the refund and any other information Akwaaba Bites is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that Akwaaba Bites may share Merchant’s transactional data regarding ordered meals, including sales data, with Merchant’s parent company or Franchisor.
Subject to this Agreement, each party hereby grants to the other party (and, in the case of Akwaaba Bites, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to the Akwaaba Bites Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Merchant’s Marks by Akwaaba Bites or its affiliates in connection with making Items available through the Akwaaba Bites App in the ordinary course of business will not require any such prior, express, written consent. Merchant further agrees that any use or display of Akwaaba Bites’s Marks will conform to the current version of Akwaaba Bite ’s Brand Guidelines, which can be found at: https://brand.Akwaaba Bites .com/guide#logo-overview. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Without limiting anything in the Agreement, Merchant represents and warrants that Merchant’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Merchant agrees that Akwaaba Bites or its affiliates may remove Merchant’s Marks from the Akwaaba Bites App if Akwaaba Bites or its affiliates receive notice or otherwise reasonably believe that such Merchant’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between Akwaaba Bites and Company prior to the commencement of any such activities.
Akwaaba Bites and its affiliates may showcase the availability of Merchant’s Items via the Akwaaba Bites App through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). Akwaaba Bites (or a party designated by Akwaaba Bites acting on Akwaaba Bites’s behalf) may take video and still images for marketing and other efforts related to the Akwaaba Bites App (“Akwaaba Bites Photographs”). Merchant agrees that Akwaaba Bites Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of Akwaaba Bites or its affiliates. Additionally, Merchant may provide videos, still image or other materials to Akwaaba Bites or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the Akwaaba Bites App or the marketing and promotion of Akwaaba Bites and the availability of your Items via the Akwaaba Bites App. Merchant hereby grants Akwaaba Bites and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Akwaaba Bites Services. Without limiting anything in the Agreement, Merchant represents and warrants that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Akwaaba Bites to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that Akwaaba Bites or its affiliates may remove Merchant Marketing Materials from the Akwaaba Bites App if Akwaaba Bites or its affiliates receive notice or otherwise reasonably believe that such Merchant Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
“Promotion(s)” means short-term offers that are available through the Akwaaba Bites App to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes Akwaaba Bites to charge Customers for the post-Promotional value of an Item (not including taxes and applicable fees). Subject to Akwaaba Bites App functionality, Akwaaba Bites may, at its sole discretion, provide enhanced promotional placement or other visual Akwaaba Bites for a Promotion.
i) Merchant Promotion(s). Subject to any other guidelines or eligibility criteria for Promotions that Akwaaba Bites may make available from time to time, Akwaaba Bites hereby authorizes Merchant to Akwaaba Bites Promotions that are designed and fulfilled by Merchant (“Merchant Promotion(s)”). Unless otherwise specified by Akwaaba Bites, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by Akwaaba Bites) either through the use of the Promotion Tool (as defined below) or through the Promotion Schedule (as defined below).
Akwaaba Bites authorizes Merchant to use Akwaaba Bites’s proprietary, automated, self-service tool located within the Akwaaba Bites Tools to Akwaaba Bites Promotions (“Promotion Tool”), subject to such Promotion Tool’s functionality and technical capability. If provided access to the Promotion Tool, Merchant agrees to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.
Merchant may Akwaaba Bites a Merchant Promotion by completing and providing Akwaaba Bites with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to Akwaaba Bites by Merchant, Merchant will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with Akwaaba Bites under the terms of this Agreement. To request a form Promotion Schedule, Merchant should contact its customer support representative.
ii) Co-Funded Promotion(s). From time to time, Akwaaba Bites may agree to fund a portion of Merchant’s Promotion (each, a “Co-Funded Promotion”). For each such Co-Funded Promotion, the parties shall agree to an applicable written Promotion Schedule setting forth: (1) a description of the Co-Funded Promotion; (2) the obligations of each party in relation to such Co-Funded Promotion, including funding obligations; and (3) any other details regarding the Co-Funded Promotion. For the sake of clarity, if Merchant is the owner of Location(s), such Co-Funded Promotion shall appear to the Customer as a Merchant Promotion, and Akwaaba Bites shall issue an adjustment to Merchant’s payout (which shall also be reflected in any payout details report) to account for the amount of the Promotion that Akwaaba Bites has agreed to fund, such that the Merchant shall receive the same amount in their Item Revenue for such order as if a Akwaaba Bites-funded portion of the Promotion was not applied to such order.
iii). Parties’ Obligations. The parties’ obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule.
1) Merchant’s Obligations. Merchant will: (A) honor and fulfill the terms of Promotions offered by Merchant (solely or jointly with Akwaaba Bites) to Customers who have successfully completed their order through the Akwaaba Bites App; (B) be responsible for the fees associated with the Promotion up to the amount Merchant has agreed to fund for such Promotion; and (C) upon reasonable request, supply Akwaaba Bites with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Akwaaba Bites may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Merchant acknowledges and agrees that Merchant will not be able to terminate the Agreement while a Promotion is live.
2) Akwaaba Bites’s Obligations. Akwaaba Bites will (A) honor and fulfill the terms of Promotions offered by Akwaaba Bites (solely or jointly with Merchant) to Customers who have successfully completed their order through the Akwaaba Bites App; (B) be responsible for the fees associated with the Promotion up to the amount Akwaaba Bites has agreed to fund such Promotion; (C) upon reasonable request, supply Merchant with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Merchant shall use to market such Promotion, provided that a Promotion Schedule authorizes Merchant to market such Promotion out of the Akwaaba Bites App; and (D) use good faith efforts to provide Merchant with reasonable information regarding Promotions, which may include, without limitation, the amount Merchant spent on Promotions and the number of Items sold in connection with Promotions.
iv) Fee on Promotion Orders. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Promotion or Co-Funded Promotion to an order through the Akwaaba Bites App, Fee shall be calculated based on the total Retail Value of the order minus the Merchant-funded portion of such Promotion applied to that order. For the sake of illustrative purposes, if Merchant and Akwaaba Bites each fund $1 of a $2 off Promotion (so the Co-Funded Promotion is funded 50% by each party) on a $10 pre-Promotion order total, the Fee shall be calculated on the post-Promotion amount of $9.
v) Out of Akwaaba Bites App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the Akwaaba Bites App. If a Promotion Schedule authorizes Merchant to market a Promotion out of the Akwaaba Bites App, all such marketing materials will be subject to Akwaaba Bites’s prior review and written approval, which shall not be unreasonably withheld.
Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Merchant’s Items to Customers through the Akwaaba Bites App and the terms and conditions of this Agreement. Proprietary Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes Akwaaba Bites and its Affiliates to disclose the terms of this Agreement to Merchant’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.
Merchant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Items under this Agreement. Merchant will maintain the accuracy and integrity of any Personal Data provided by Akwaaba Bites and in Merchant’s possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by Akwaaba Bites solely by using the software and tools provided by Akwaaba Bites. “Personal Data” means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered “personal data” or “personal information” under the applicable law.
Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Akwaaba Bites Tools and related Akwaaba Bites Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.
Without limiting any other provision of this Agreement, including any provision in this Section 8, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.
Merchant may, but is not obligated to, provide or otherwise make available to Akwaaba Bites or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to Akwaaba Bites’s and its affiliate’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to Akwaaba Bites or its affiliates, Merchant hereby grants to Akwaaba Bites and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.
Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the Akwaaba Bites App to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant and the relevant Item(s) on the Akwaaba Bites App (“Customer Feedback”). Akwaaba Bites and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of Akwaaba Bites and its affiliates without attribution to or approval of Merchant. Merchant acknowledges that Akwaaba Bites and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Akwaaba Bites and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy or other applicable laws, or Akwaaba Bites’s or its affiliates’ content policies.
Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Merchant, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Merchant further represents and warrants that to the extent Merchant has franchisees who participate in any activities under this Agreement, Merchant will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Party infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the Akwaaba Bites Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Sales Tax applicable to sales of Restaurant Items in non-Marketplace Facilitator Jurisdictions; (C) Merchant’s failure to provide accurate and complete descriptions or Additional Information for Restaurant Items in Marketplace Facilitator Jurisdictions; (D) Sales Tax applicable to all sales of non-Restaurant Items (regardless of whether such Items are sold through a separate Additional Items Storefront); or (E) any claim related to Merchant’s failure to perform obligations contained in Section 2 of the Terms of Use for Alcohol Sales, if applicable, except in the case of each of (A)-(E) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Akwaaba Bites or its employees, agents or Delivery People.
We will provide you prompt written notice of any potential claim subject to indemnification hereunder. You will assume the defense of the claim through counsel you designate, however, such counsel must be reasonably acceptable to the Indemnified Party. You will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF MERCHANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, Akwaaba Bites and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. In addition, Akwaaba Bites agrees to maintain Commercial Automobile Liability insurance with limits of One Million Dollars ($1,000,000) per accident for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles. All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.
Merchant will comply with the applicable then-current Community Guidelines, currently available at https://www.Akwaaba Bites .com/legal/community-guidelines/us-en-Akwaaba Bites -Akwaaba Bites/ (“Community Guidelines”). In addition, supplemental terms may apply to Merchant’s use of the Akwaaba Bites Services and the Akwaaba Bites Tools, such as use policies or terms related to certain Akwaaba Bites and functionality, which may be modified from time to time (collectively, with the Community Guidelines, “Supplemental Terms”). Supplemental Terms are in addition to, and will be deemed a part of, the Agreement. Supplemental Terms will prevail over the Agreement in the event of a conflict. Akwaaba Bites will use good faith efforts to provide Merchant with written notice of any material updates to the Supplemental Terms, and, if Merchant does not agree to comply with the terms of any such update, Merchant may, as its sole and exclusive remedy, terminate this Agreement and cease use of the Akwaaba Bites Services and Akwaaba Bites Tools. By continuing to use the Akwaaba Bites Services or the Akwaaba Bites Tools, Merchant will be deemed to accept the Supplemental Terms. Notwithstanding anything to the contrary, the terms and conditions of Akwaaba Bites ’s then-current Privacy Policy, currently available at: https://privacy.AkwaabaBites .com/policy, will apply to Akwaaba Bites’s collection, use and processing of Personal Data.
This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause by giving sixty (60) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, Akwaaba Bites may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Merchant that, in Akwaaba Bites’s reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections 1, 3.3, 7.1, 8-13, this last sentence of 15, 16-17 and 19 will survive the expiration or termination of this Agreement.
Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to Akwaaba Bites should be provided to Akwaaba Bites, LLC, Attn: Legal, , with a copy to Akwaaba Bites Technologies, Ltd., Attn: Legal – . Notices to Merchant should be provided to the address provided by Merchant. The parties agree that all legal documents (including complaints and subpoenas) directed to Akwaaba Bites will be served on Akwaaba Bites’s registered agent for service of process.
Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any que
